Restless Judge Posner
By David Henderson
Probably the best-known current federal judge who is not a Supreme Court justice is Richard Posner. He has been a judge on the 7th Circuit since 1981. Posner is known for his judicial decisions, his crystal-clear writing style in those decisions, and his prodigious output: over 40 books and hundreds of articles in law reviews, economics journals, and popular publications.
Given his importance in both academia and the federal courts, we have been due for a book that tells us more about the man. In most of the important ways, William Domnarski’s Richard Posner is that book.
This is the opening paragraph from “The Restless Judge,” my review of the book.
We see Posner call out various judges for intellectual laziness. He tangles with the late Supreme Court Justice and his former University of Chicago colleague, Antonin Scalia. He acerbically dresses down some police officers who have violated a defendant’s Miranda rights. He confidently reaches conclusions about public policy based on his largely self-taught economic understanding.
Posner on Scalia
Posner is a harsh critic of federal judges, arguing that many of them are lazy and that they should write their own decisions rather than have their clerks write them. Two famous judges whom he takes on are current Chief Justice John Roberts and the late Justice Antonin Scalia. In a 2012 article in Slate, after Scalia had dissented from parts of the majority opinion that invalidated some provisions of an Arizona law on immigration, Posner raked Scalia over the coals. Scalia had written, “[Arizona’s] citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.” Wrote Posner, “But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.” Aside from his question-begging use of “hyperbole”–if it were hyperbole, one would be hard put to find a “reputable source” to support it–Posner made a good point.
Posner on Miranda Warning and Cops
In my view, Posner was at his finest in his 2014 United States v. Slaight opinion reversing the conviction of Michael Slaight for receipt and possession of child pornography. The police had clearly denied Slaight his Miranda warning, and Posner saw through it. Dismissing the police argument that they wanted to interview Slaight at the police station rather than at his home because his windows were covered with trash bags, blocking the sunlight, Posner wrote sardonically that “the officers gave no reason why an interview, unlike painting a landscape, requires natural rather than artificial light.” As to their argument that the house “had a strong smell of cats,” Posner, who to his credit is pro-cat throughout the book, wrote that “police smell much worse things in the line of duty.” The final two sentences of Posner’s decision are terse and beautiful: “These facts are incontrovertible and show that the average person in Slaight’s position would have thought himself in custody. Any other conclusion would leave Miranda in tatters.”
I do end, however, by pointing out that Posner seems to have undue confidence in the willingness of powerful government officials to do the right thing even when they have little incentive to do so.